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Home My WebLink About2020CV30363 - Stuward Cross And Katrina Richman V. City Of Fort Collins - 067 - Mot Dismiss Failure To ProsecuteDISTRICT COURT, LARIMER COUNTY, COLORADO Larimer County Justice Center 201 Laporte Avenue, Suite 100 Fort Collins, CO 80521-2761 (970) 498-6100 Plaintiffs: STUWARD CROSS AND KATRINA RICHMAN v. Defendant: THE CITY OF FORT COLLINS, State of Colorado COURT USE ONLY Andrew W. Callahan, #52421 – acallahan@wicklaw.com Julie M. Yates, #36393 – jyates@wicklaw.com WICK & TRAUTWEIN, LLC 323 South College Avenue, Suite 3 Fort Collins, CO 80522 Phone & Fax Number: (970) 482-4011 John R. Duval, #10185 – jduval@fcgov.com Adam Stephens, #55637 – adstephens@fcgov.com Fort Collins City Attorney’s Office P.O. Box 580 Fort Collins, CO 80524 (970) 221-6520 Case No.: 2020 CV 30363 Division: 3C DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO PROSECUTE ACTION COMES NOW Defendant the City of Fort Collins, by and through counsel, and files its motion to dismiss for failure to prosecute action as follows: Rule 121 Certification: On January 12, 2022, counsel for Defendant attempted to contact Ms. Richman to ascertain her position on the motion to dismiss for failure to prosecute. Ms. Richman did not respond. I. INTRODUCTION On May 29, 2020, Ms. Richman filed her Complaint against Antonio Lopez (deceased) and the City of Fort Collins for an alleged accident involving a City of Fort Collins vehicle. On DATE FILED: January 14, 2022 11:26 AM FILING ID: 9649106A60D51 CASE NUMBER: 2020CV30363 2 October 11, 2021, counsel for Ms. Richman, Ms. Laura Browne and Ms. Ashley Fridovich, filed their motion to withdraw as counsel for Ms. Richman. The trial in this matter is scheduled for February 28 – March 3, 2022. To date, Ms. Richman has not secured new counsel to represent her. At the status conference held on December 17, 2021, Ms. Richman stated to the Court that she does not believe she is able to navigate a jury trial without representation. The Court requested that Ms. Richman obtain counsel, if she wished to be represented by counsel, denied Ms. Richman’s request for a continuance, and requested that Ms. Richman notify the Court immediately if she obtained Counsel. It was at this status conference that Ms. Richman was informed of the scheduling of a follow-up status conference for January 7, 2022. On January 7, 2022, this Court held its follow-up status conference for which Ms. Richman failed to appear. Defendant respectfully requests this Court enter an order dismissing Ms. Richman’s action without prejudice for failure to prosecute, and Defendant files its attached brief in support of the motion. II. STANDARD OF REVIEW Colorado Rules of Civil Procedure Rule 41(b)(1) provides that a case may be dismissed for failure to prosecute as follows: **** (b) Involuntary Dismissal: Effect Thereof. (1) By Defendant. For failure of plaintiff to prosecute with these Rules or any order of court, a defendant may move for dismissal of an action or any claim against him. **** A plaintiff must prosecute its own case within due course and without unusual delay. 3 Johnson v. Westland Theaters, Inc., 187 P.2d 932 (Colo. 1947). The dismissal of a case for failure to prosecute lies within the sound discretion of the trial court. Oversole v. Manci, 216 P.3d, 623 (Colo.App.2009), Cullen v. Phillips, 30 P.3d 828, 834 (Colo.App.2001). On a motion to dismiss for failure to prosecute, it is not necessary for a Defendant to show that they are or will be prejudiced by a plaintiff’s delay in prosecuting its case. Rossi v. Matters, 749 P.2d 964, 965 (Colo.App.1987). However, to rebut the allegation of undue delay in plaintiff’s prosecution of its case, plaintiff must show specific facts, not just conclusory assertions, that he/she made diligent efforts to move the case forward. Id. 965-966. A trial court’s determination as to whether or not to grant a request for dismissal, should take into account considerations of equity. Craig v. Rider, 651 P.2d 397 (Colo. 1982). III. ARGUMENT A. The Alleged Accident/Injuries Occurred Almost 5 Years Ago. Plaintiff filed her complaint on May 29, 2020 which was served upon Defendant, the City of Fort Collins, on June 6, 2020, one day prior to the expiration of the statute of limitations. C.R.S. 13-80-101((n)(I). This matter has case has been pending before this Court for almost two years; Plaintiff has had the opportunity to diligently pursue her claim for twenty months. Plaintiff’s counsel filed her motion to withdraw on October 11, 2021. The certificate of service indicates it was mailed to Plaintiff on the date of filing, at the address Plaintiff has on file with the Court and which the Plaintiff confirmed was the correct address. At the status conference before this Court on December 17, 2021, Plaintiff admitted to the Court that she had not even begun the process of securing new counsel but that she also did not believe she could effectively navigate the trial without counsel. 4 Since the alleged accident, the driver of the truck, died – a key witness for the Defendant. As time passes, Defendant becomes at a greater and greater disadvantage as evidence deteriorate, memories fade and witnesses are harder to locate creating undue prejudice against Defendant and hampering Defendant’s ability to fully defend against Plaintiff’s allegations. B. Plaintiff Failed to Appear at the January 7, 2022 Status Conference Plaintiff was given notice of the January 7, 2022 status conference when she appeared before the Court on December 17, 2021. She failed to appear at the status conference. Defendant has incurred considerable expense in defending this action and will incur considerably more expense in preparing for trial in the upcoming forty-seven (47) days and it is unjust and inequitable for Defendant to incur such expense if Plaintiff is failing to engage or pursue the litigation she commenced. On October 11, 2021, counsel for Plaintiff filed their motion to withdraw. On December 17, 2021 and before this Court, Plaintiff admitted that she had taken no steps to secure new counsel but that she didn’t believe she could proceed without counsel. On December 17, 2021, the Court asked Ms. Richman to notify the Court and the parties immediately if she obtained counsel. To date, she has not notified the Court or the parties of the retention of counsel and no entry of appearance has been filed by counsel on her behalf. On January 7, 2022, Plaintiff failed to appear at the status conference before this Court, for which Plaintiff had notice. On January 12, 2022, counsel for Defendant attempted to contact Ms. Richman to ascertain her position on the motion to dismiss for failure to prosecute. Ms. Richman did not respond. IV. CONCLUSION AND REQUEST Defendant respectfully requests that this Court dismiss the Plaintiff’s action without prejudice 5 based on Plaintiff’s failure to prosecute her case pursuant to C.R.C.P. 41. Respectfully submitted this 14th day of January, 2022. WICK & TRAUTWEIN, LLC By: s/ Andrew W. Callahan Andrew W. Callahan, #52421 Julie M. Yates, ##36393 Attorneys for Defendants And John R. Duval, #10185 Adam Stephens, #55637 Fort Collins City Attorney’s Office 6 CERTIFICATE OF ELECTRONIC FILING The undersigned hereby certifies that a true and correct copy of the foregoing DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO PROSECUTE ACTION was served via the Colorado Courts E-Filing System this 14th day of January, 2022, on the following: Laura Michelle Browne Ashley Fridovich Wilhite, Rose, McClure & Sawaya, P.C. 1600 N. Ogden Street Denver, CO 80218 Adam Stephens John Duval FORT COLLINS CITY ATTORNEY’S OFFICE P.O. Box 580 Fort Collins, CO 80522 Sent via U.S. Mail and email: Katrina Richman 2027 Shorebird Drive, Apt 202 Fort Collins, CO 80525 Free2bme.kr@gmail.com s/Jody L. Minch